Dhummi, Sunil v Minister for Immigration and Multicultural

[1997] FCA 476

CATCHWORDS

IMMIGRATION - Protection visas - application for review of decision of Refugee Review Tribunal that applicant was not a refugee - whether mistake of law - whether applicant had a well‑founded fear of persecution - "real chance" test - whether finding that applicant could relocate to another part of India was open to Tribunal.

Migration Act 1958 s 36(2), s 40, s 65(1)

Migration (1994) Regulations regs 2.04 & 2.05, Pt II,

cl 866.211, Sch 2

Article 1A(2) of the Convention Relating to the Status of

Refugees as amended by the Protocol Relating to the Status of Refugees

Minister for Immigration and Ethnic Affairs & Refugee Review

Tribunal v Mohinder Singh (Black CJ, Lee, von Doussa, Sundberg & Mansfield JJ, 24 January 1997, unreported)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs

(1989) 169 CLR 379

Randhawa v Minister for Immigration Local Government and

Ethnic Affairs (1994) 124 ALR 265

Minister for Immigration and Ethnic Affairs v Wu Shan Liang

(1996) 185 CLR 259

Selvadurai v Minister for Immigration and Ethnic

Affairs(1994) 34 ALD 347

SUNIL DHUMMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No VG 297 of 1996

GOLDBERG J

MELBOURNE

21 APRIL 1997

FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY)

GENERAL DIVISION ) No VG 297 of 1996

B E T W E E N:

SUNIL DHUMMI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM:GOLDBERG J

PLACE:MELBOURNE

DATE:21 APRIL 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent's costs of the application including any reserved costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules

FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY)

GENERAL DIVISION) No VG 297 of 1996

B E T W E E N:

SUNIL DHUMMI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM:GOLDBERG J

PLACE:MELBOURNE

DATE:21 APRIL 1997

REASONS FOR JUDGMENT

Introduction and background

The applicant who was born in India on 14 May 1966, arrived in Australia on 29 April 1990 on a visitor's visa and was granted a six week entry permit. He has remained in Australia since the expiry of that permit. On 11 January 1995 he lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs which application was rejected by the delegate of the Minister on 28 April 1995. On 30 May 1995 the applicant lodged an application for review of that decision with the Refugee Review Tribunal ("the Tribunal"). The Tribunal conducted a hearing on 29 January 1996 and on 2 May 1996 affirmed the decision of the primary decision‑maker and decided that the criterion under s 36(2) of the Migration Act 1958 ("the Act") for grant of a protection visa was not satisfied. On 30 May 1996 the applicant filed an application for an order of review of the decision of the Tribunal and on 23 August 1993 the applicant filed an amended application which specified two grounds of review as follows:

"1.The Tribunal misconstrued and misapplied section 36(2) of the Migration Act 1958.

PARTICULARS

The respondent misconstrued and misapplied the definition of 'refugee' contained in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ('the Convention definition of refugee') and as applicable to the Migration Act 1958, in that it decided the applicant must have a 'substantial' risk of persecution to establish the criteria of a 'well founded fear' of persecution.

2.The Tribunal failed to apply or correctly apply the 'real chance of persecution' test to the fact that SIKH Militants are found in all parts of India and it is not possible to relocate and seek effective protection in another part of India."

The application for refugee status had been made pursuant to the provisions of s 36(2) and s 65(1) of the Act and by virtue of the provisions of s 40 relied upon the provisions of reg 2.04 and 2.05 of the Migration (1994) Regulations Pt II and in particular on cl 866.211 of Sch 2. Thus, the issue which arose for determination before the Tribunal and which arises for consideration before the Court is whether the applicant, at the time of the determination by the Tribunal, was a person who had a well‑founded fear of being persecuted for reasons (claimed in this case) of political opinion or religion: Article 1A(2) of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees ("the Convention"). By virtue of Article 1A(2) of the Convention a refugee is a person:

"owing to well‑founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ..."

In his submissions of fact and law filed prior to the hearing the applicant simply repeated the grounds referred to in his amended application. The applicant appeared in person and in the course of his oral submissions amplified his grounds of complaint about the decision of the Tribunal. These grounds were not comprehended by the grounds set out in the application or the contentions which were filed. The applicant submitted that the Tribunal ignored the facts which he presented before the Tribunal including the affidavits of his witnesses. He submitted that the Tribunal did not investigate all the details of his case but looked at the general material available without looking at his particular case. He submitted that the issue of relocation was not a simple matter and that he would not have left India in the first place if he could have relocated. He said that if it were a matter of survival he could go to other parts of India but that would be day to day living and he would not be able to live his life to its full potential. He said that if he returned to India he would lose the opportunity which he had before he left India when he was preparing for the civil service exams. He submitted that his case should be investigated by the Department of Immigration because of its seriousness and that the Tribunal applied facts generally without investigating thoroughly the seriousness of his individual case. He identified a number of newspaper articles in September and December 1995 (which were before the Tribunal) which referred to the assassination of a Punjab leader by Sikh militants and also to the arrest of Sikh separatists. In support of his submission that evidence he put before the Tribunal was not given any importance, he referred to a letter from Mr Adampur Doaba MLA which said there was still a danger to his life.

Decision of the Tribunal

In its decision the Tribunal set out its understanding of the relevant legal provisions and principles of law which applied to the issues before it. It correctly identified the relevant definition of a "refugee" found in Article 1A(2) of the Convention and correctly stated that whether or not a person is a refugee in terms of the Convention is to be determined by reference to the facts existing at the time of its determination: Minister for Immigration and Ethnic Affairs & Refugee Review Tribunal v Mohinder Singh (Black CJ, Lee, von Doussa, Sundberg & Mansfield JJ, 24 January 1997, unreported). The Tribunal then noted that the term "well‑founded fear" contained both subjective and objective requirements and noted that a fear of persecution was well-founded if there was "a real chance that the refugee will be persecuted if he returns to his country of nationality", referring to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal relied upon the same decision for its understanding of the content of the expression "persecution" (pp 4-5).

The Tribunal then set out the claims which had been made by the applicant and the evidence which was available before the Tribunal. It set out the applicant's history and the applicant's claim to refugee status which arose from a fear of being killed on return as a member of the Hindu majority in the Sikh-dominated region of Punjab known for his opposition to the Khalistan and Sikh revolutionary movements. The applicant claimed that he would be killed by Sikh extremists if he was to return to India and that relocation to another area of India outside the Punjab was not an option as Sikhs were everywhere and it was not safe for him in any part of India. He submitted affidavits which referred to the difficulties he would face on his return.

The Tribunal accepted that the applicant had a subjective fear of persecution but noted that in order to satisfy the Convention definition of a "refugee" that fear had to be well‑founded in the sense that there had to be a "real chance" of persecution occurring for a Convention reason. In this respect the Tribunal correctly interpreted the applicable law: Chan (supra); cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Further, the Tribunal noted that the applicant had to demonstrate a present or prospective risk of persecution, irrespective of the extent or nature of mistreatment, which might have amounted to persecution, that he had suffered in the past, again correctly identifying the relevant principle of law.

The Tribunal then noted that the applicant's claims for protection could be assessed as coming within the Convention on grounds of religion and imputed political opinion. It noted that no claims had been raised nor were ascertainable of a well‑founded fear of persecution by virtue of the applicant's race or nationality.

The Tribunal accepted that the applicant was reluctant to return to India and in particular the Punjab, because of the climate of violence and civil unrest which had given rise to his fear of harm. The Tribunal then went on to consider if the applicant's fear was grounded objectively for a Convention reason. It set out in some considerable detail the evidence available to it in relation to the Punjab and the instability and violence which the region had experienced for a considerable time. The Tribunal then noted that from early 1993 there was evidence of a substantial improvement in the overall security situation in the Punjab. It is not necessary to analyse that evidence in any detail. I note, however, that there was evidence before the Tribunal that it was unlikely that there would be a resurgence of Sikh insurgency or militancy.

The Tribunal then drew a number of conclusions from the evidence before it. One conclusion was that the applicant's subjective fear of return to India, which appeared to the Tribunal to be genuine, related primarily to the uncertainty of the security climate which characterised the Punjab region at the time of his departure. The Tribunal noted that despite the genuineness of his subjective fear it was evident that there had been a dramatic improvement in the situation since he left the region. The Tribunal then turned its attention to the situation which had existed at the time the applicant left India and asked whether substantial material change had taken place in India, and in the Punjab in particular, since his departure such that he no longer faced a real chance of persecution on his return because of the harm which he had suffered in the past and the circumstances which led to the past persecutions. The Tribunal concluded on the evidence before it that the level of violence and killings in the Punjab had fallen dramatically since the applicant had left the region and that in view of the vastly improved situation in the Punjab, it found that there was no more than "a very remote chance that the applicant would be differentially at risk on return". There was evidence before the Tribunal from which it was entitled to reach that conclusion.

It is important to note that the Tribunal found itself unable to accept the claims by the applicant and his witnesses regarding the continuing threat to him by Sikh militants. A number of witnesses had sworn affidavits to the effect that the applicant's life would be in danger and he would be killed if he returned to India. The Tribunal noted that the affidavits appeared to be self‑serving and could not be reliably regarded as evidence probative of the fact that terrorists were still pursing the applicant. The Tribunal found that there was "less than a real chance that the extremists have continued to maintain that adverse interest in him". Although the witnesses did not appear before the Tribunal the Tribunal was not bound to accept their evidence uncritically and in any event, it had to weigh the evidence of the witnesses together with other evidence before it. Further, in reaching this conclusion I note that the Tribunal correctly applied the "real chance" test required by Chan and adverted to evidence which supported its conclusion.

The Tribunal then asked the question - even if it was wrong was it possible for the applicant to seek effective protection in another part of India. The Tribunal concluded on the evidence before it that it was open to the applicant to relocate in another part of India and it did not consider that this was an unreasonable option for the reasons it set out. In this respect the Tribunal correctly applied the test adopted by the Full Federal Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265. I also note in passing that the Tribunal also found that the applicant's delay in making his application for refugee status indicated that he did not have a strong fear for his personal safety or future well‑being in India as he had subsequently claimed. In my view, the Tribunal was entitled to take this into consideration: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 349.

Finally the Tribunal expressed its conclusions in terms that the applicant did not face a real chance of persecution because of his religion or imputed political opinion upon return to India at the time of its determination or within the reasonably foreseeable future. The Tribunal expressed itself in terms of the test laid down by the High Court in Chan and in my opinion it did so correctly.

The matters which the applicant raised in his oral submissions are not, in my view, matters which can be said to constitute or evidence an incorrect interpretation of the applicable law or an incorrect application of the applicable law to the facts by the Tribunal. In essence, the applicant was saying that there was evidence before the Tribunal presented by him which the Tribunal should have accepted. The difficulty with the formulation of the submission in that way is that it ignores the fact that there was other evidence before the Tribunal which the Tribunal was entitled to take into account in determining what weight to give the evidence led by the applicant and whether or not to accept it. The Tribunal did not ignore the facts presented by the applicant. The Tribunal specifically directed its attention to the affidavits upon which the applicant relied (Decision pp 6 and 7) and referred to the letter from Mr Adampur Doaba MLA (Decision p 7) and also referred to the document from the World Sikh Sammelan which stated that the applicant's death had been ordered by two pro‑Khalistan groups (Decision p 7). Later in the Decision (p 17) the Tribunal again addressed all this evidence but gave it little weight for the reasons which it set out.

Even if the oral submission made by the applicant was a ground of review before the Court I am satisfied on a careful reading of the Tribunal's decision that the ground is not made out. However, I emphasise that I am not entitled to undertake a reconsideration of the merits: Wu Shan Liang (supra) 272, 291. Further, the oral submissions made do not indicate that there was any incorrect interpretation or application of the relevant law, the applicant's submission rather being that if he did relocate in India it would be day by day living and he would not be able to live his life to its full potential. The newspaper reports to which the applicant referred were before the Tribunal and the Tribunal was required to give them such weight as it considered appropriate having regard to all the relevant evidence before it. The Tribunal identified all the relevant evidence and gave it the weight it thought appropriate. There is nothing in the Tribunal's analysis of the facts, which, in my view, gives rise to a relevant ground of appeal.

Conclusion

It therefore follows, in my opinion, that none of the grounds of review have been made out. The Tribunal did not misconstrue or misapply s 36(2) of the Act or the definition of "refugee". It correctly stated the relevant principles of law which it had to apply. The grounds suggested that the Tribunal had applied a test that the applicant must have a "substantial" risk of persecution to establish the criterion of a "well‑founded fear" of persecution. I cannot find such an expression used by the Tribunal but only the use of language such as "real chance". Nowhere does it appear that the Tribunal required a substantial risk of persecution to satisfy the criterion for a refugee. It correctly applied the applicable law to the facts which it found. Insofar as the applicant relies on an error of law being an incorrect application of law to the facts as found by the Tribunal, it must accept the Tribunal's finding of facts. In essence, the applicant's complaint that the Tribunal should not have found that it was possible to relocate elsewhere in India. That is not an incorrect application of the law to the facts as found but rather a complaint that the facts as found should not have been found as they were. There was evidence before the Tribunal from which it was open to it to reach the conclusions it did. Therefore its findings of fact cannot be re-visited.

The application will be dismissed.

Counsel for the applicant: Applicant in person

Counsel for the respondent: Mr C Gunst

Solicitors for the respondent: Australian Government Solicitor

Date of Hearing: 21 April 1997

Date of Judgment: 21 April 1997

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg

Associate:

Date: 21 April 1997